[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-12354

Non-Argument Calendar

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D.C. Docket No. 2:10-cv-00157-LGW-JEG

GOWEN OIL COMPANY, INC., 

 Plaintiff - Appellant,

 versus

BIJU ABRAHAM, et al.,

 Defendants,

GREENBERG TRAURIG, LLP, 

GREENBERG TRAURIG, P.A., 

 Defendants - Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

________________________

(March 6, 2013)

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Before CARNES, HULL, and JORDAN, Circuit Judges.

PER CURIAM: 

Gowen Oil Company, Inc. appeals the district court’s award of attorney’s 

fees and expenses under Ga. Code Ann. § 9-11-68 to Greenberg Traurig, LLP and 

Greenberg Traurig PA (collectively, Greenberg). 1

Gowen filed an action for tortious interference, negligence, and fraud against 

Greenberg and one other defendant in Georgia state court, seeking roughly $35 

million in compensatory and punitive damages, attorney’s fees, and costs. 

Greenberg timely removed the case to federal court based on diversity of 

citizenship.2

 On March 31, 2010, acting under Ga. Code Ann. § 9-11-68, 

Greenberg offered Gowen $63,000 to settle all of the claims. Gowen did not 

respond to the offer, which was deemed rejected 30 days after it was made. See

Ga. Code Ann. § 9-11-68(c).

On September 3, 2010, the district court granted summary judgment in favor 

of Greenberg on all of Gowen’s claims against it. Although Gowen’s claims 

 1 Gowen’s brief states that it is seeking review of the award of costs but contains no 

argument and cites no authority about costs as distinguished from legal fees. For that reason, any 

issue about costs has been waived. See Hamilton v. Southland Christian School, Inc., 680 F.3d 

1316, 1319 (11th Cir. 2012) (“A passing reference to an issue in a brief is not enough, and the 

failure to make arguments and cite authorities in support of an issue waives it.”).

2 Greenberg could remove without consent of the other defendant Gowen intended to sue, 

because that defendant was not served. See 28 U.S.C. § 1446(b)(2)(A) (“[A]ll defendants who 

have been properly joined and served must join in or consent to the removal of the action.”). 

Later, Gowen filed an amended complaint adding two defendants, which did not affect the 

removal.

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against another defendant were still pending, on January 10, 2011 the court entered 

final judgment in Greenberg’s favor on Gowen’s claims against it. Greenberg, 

which had hired an Atlanta law firm to defend it against Gowen’s claims, 

requested attorney’s fees and expenses incurred between May 4, 2010 and 

November 7, 2010, under Ga. Code Ann. § 9-11-68. It also requested costs under 

Fed. R. Civ. P. 54. After a hearing, the district court granted Greenberg’s request, 

awarding it $35,577.54 in costs, $272,031.90 in fees, and $9,230.25 in expenses. 

This is Gowen’s appeal.3

We review a district court’s award of attorney’s fees only for an abuse of 

discretion. Gray v. Lockheed Aeronautical Systems Co., 125 F.3d 1387, 1389 

(11th Cir. 1997). “An abuse of discretion occurs if the judge fails to apply the 

proper legal standard or to follow proper procedures in making the determination, 

or bases an award upon findings of fact that are clearly erroneous.” Johnson v. 

Breeden, 280 F.3d 1308, 1326 (11th Cir. 2002) (quotation marks omitted).

I.

Gowen contends that Greenberg is not entitled to recover any fees and 

expenses because it had malpractice insurance that covered its payment of those 

fees. The Georgia statute allows the defendant to recover fees and expenses 

 3 This appeal involves only the district court’s award of fees and expenses. We affirmed 

the grant of summary judgment in favor of Greenberg in an earlier appeal. Gowen Oil Co., Inc. 

v. Greenberg Traurig, LLP, 453 F. App’x. 897 (11th Cir. 2011) (unpublished). 

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incurred not only by the defendant but also “on the defendant’s behalf.” See Ga. 

Code Ann. § 9-11-68(b)(1). The district court concluded that that statutory 

language contemplates an award of attorney’s fees and expenses where they were

payable or paid by an insurance company on the party’s behalf. Gowen has not 

presented any authority suggesting that the statute should be read differently. The 

“clear purpose” of § 9-11-68 is “to encourage litigants in tort cases to make and 

accept good faith settlement proposals in order to avoid unnecessary litigation.” 

Smith v. Baptiste, 694 S.E.2d 83, 88 (Ga. 2010). That purpose would be 

undermined if the rejecting party did not have to pay fees and expenses that were 

covered by the offering party’s insurance. We agree with the district court that 

Greenberg’s insurance does not insulate Gowen from the payment of legal fees and 

expenses under § 9-11-68.

II.

The Georgia Code provides, “[i]f a defendant makes an offer of settlement 

which is rejected by the plaintiff, the defendant shall be entitled to recover 

reasonable attorney’s fees and expenses of litigation incurred by the defendant or 

on the defendant’s behalf from the date of the rejection of the offer of settlement 

through the entry of judgment if the final judgment is one of no liability . . .” Ga. 

Code Ann. § 9-11-68(b)(1) (emphasis added). Gowen argues that the “entry of 

judgment” occurred on September 3, 2010, the date the district court granted 

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summary judgment against it on all of its claims against Greenberg. That grant of 

summary judgment was only a partial resolution of the case, however, because 

claims against another defendant remained pending. The plain language of § 9-11-

68 indicates that the period for incurring recoverable fees does not end with a 

“judgment” but instead with the “entry of judgment.” Under both Georgia and 

federal law, when a judgment resolves fewer than all of the claims pending before 

the court, the court “may direct the entry of a final judgment . . . only upon an 

express determination that there is no just reason for delay and upon an express 

direction for the entry of judgment.” Ga. Code Ann. § 9-11-54(b); see also Fed. R. 

Civ. P. 54(b). The district court did not direct the entry of judgment until January 

13, 2011, when it entered final judgment under Fed. R. Civ. P. 54(b). For that 

reason, the district court did not abuse its discretion in determining that Greenberg 

is entitled to fees it incurred after September 3, 2010 and before January 13, 2011.

Based on its misunderstanding of the term “judgment” as used in Ga. Code 

Ann. § 9-11-68, Gowen also argues that the statute and federal law define 

“judgment” differently, and because of that difference the Georgia statute should 

not be applied in this diversity case. We disagree. There is no relevant difference 

in definition because § 9-11-68 specifies that the end point for calculating the legal 

fees and expenses to be awarded is not the order announcing the judgment but “the 

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entry of judgment.” Ga. Code Ann. § 9-11-68(b)(1) (“through the entry of 

judgment”). 4

III.

Gowen contends that even if Greenberg is entitled to attorney’s fees, the 

amount it requested and the district court awarded is unreasonable for several 

reasons. First, it argues that the court applied the incorrect market rate in 

determining reasonable fees. “[T]he starting point in any determination for an 

objective estimate of the value of a lawyer’s services is to multiply hours 

reasonably expended by a reasonable hourly rate.” Norman v. Hous. Auth. of City 

of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).5 “A reasonable hourly rate 

is the prevailing market rate in the relevant legal community for similar services by 

lawyers of reasonably comparable skills, experience, and reputation.” Id. 

Gowen argues that the lower market rates in Brunswick, Georgia, the venue 

where the case was decided, should have been used in determining a reasonable 

hourly rate. Greenberg presented expert testimony that Atlanta rates were 

 4 Although Gowen argued to the district court that § 9-11-68 should not be applied in this 

diversity case because it is procedural, Gowen did not raise that argument before us and so it is 

waived. Hamilton, 680 F.3d at 1319. We apply § 9-11-68 here but do not decide whether it 

should be applied in all diversity cases applying Georgia law.

5 The district court used federal law to evaluate the reasonableness of the requested 

amount. Gowen did not object to that, and both parties base their arguments about the 

reasonableness of the fees on federal law. In any event, as the district court noted, the outcome 

would be the same under Georgia law. Therefore, we assume, as everyone else has, that federal 

standards of reasonableness apply. Cf. Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1578, 

1580 (11th Cir. 1990) (following state law in determining whether attorney’s fees were available 

but applying, without comment, federal standards to determine reasonableness). 

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appropriate because there was no Brunswick firm with comparable experience. 

The district court did not decide which market rates should apply because it 

concluded that using Brunswick rates would not result in a reduction in the 

requested reimbursement amount. Although Greenberg was charged based on 

Atlanta rates, it negotiated a ten percent discount and imposed a fee cap of 

$150,000 on hours billed for briefing of the summary judgment motion. Based on

those discounts Greenberg incurred about the same amount in fees that it would 

have if it had paid Brunswick rates and received no discounts.

Greenberg submitted an affidavit with prevailing market rates for Brunswick 

multiplied by the 1,162.9 hours expended by Greenberg’s counsel, resulting in a 

fee amount of $276,575.00. Greenberg had requested $272,031.90 in fees based 

on the discounted Atlanta rate. The district court found that the rates and 

calculations in the affidavit were accurate and concluded that Greenberg’s 

requested fees were in line with Brunswick’s prevailing market rates. If 

Greenberg’s fee request was based on reasonable rates, the district court did not 

abuse its discretion in granting the request, even if Greenberg arrived at those 

reasonable rates only by negotiating for a discount. 

Gowen argues that the ten percent discount Greenberg negotiated with its 

counsel should have been applied when the court calculates reasonable fees based 

on Brunswick rates. There is no evidence in the record explaining why Greenberg 

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was able to negotiate the lower rate. Simply because one party was able to 

negotiate a discount on the rates it was charged does not mean that the discount 

must be applied to a lower regional rate if a lower regional rate should apply in 

evaluating the reasonableness of the fees. In evaluating comparability of market 

rates, the court may consider factors such as the nature and length of the 

professional relationship with the client and the customary fee for similar work in 

the community. See Norman, 836 F.2d at 1299–1300 (noting that the court may 

consider the Johnson factors in evaluating the relevancy and weight of 

comparables offered to the court). If, for example, Gowen had offered evidence 

that attorneys in Brunswick generally charge a lower rate when they represent law 

firms like Greenberg on this kind of case, the court would have been obligated to 

take that fact into consideration. Gowen has not offered any evidence of that. 

Gowen’s bare assertion that a discount should apply to Brunswick rates simply 

because Greenberg actually negotiated a discount on the rates of the lawyers it 

hired in Atlanta is incorrect, and the district court did not abuse its discretion in 

finding that the rates requested by Greenberg are reasonable.

IV.

Gowen also argues that the number of hours requested by Greenberg is 

unreasonable. It first contends that Greenberg has requested fees for repetitive 

work, specifically citing hours billed for meetings involving several attorneys. 

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“There is nothing inherently unreasonable about a client having multiple attorneys, 

and they may all be compensated if they are not unreasonably doing the same work 

and are being compensated for the distinct contribution of each lawyer.” Norman, 

836 F.2d at 1302. But “[t]he time of two or three lawyers in a courtroom or 

conference when one would do, may obviously be discounted.” Johnson v. 

Georgia Highway Exp., Inc. 488 F.2d 714, 717 (5th Cir. 1974).

Gowen specifically focuses on two meetings held in May, each of which

involved four attorneys.6

 The affidavits and other materials submitted by 

Greenberg do not detail what each attorney did in those meetings, but they do

detail how work was divided on the motion for summary judgment brief, which 

was the topic of those meetings. For example, two partners present at one of the

meetings drafted different parts of the brief, one associate reviewed the facts in the 

brief, and another reviewed Gown’s brief. Based on the affidavits, which show the 

individualized contributions each attorney made to the briefing tasks, the district 

court concluded that the hours the attorneys spent in the meeting were reasonable. 

The district court has a range of choice in exercising its discretion, see, e.g.,

Norelus v. Denny’s Inc., 628 F.3d 1270, 1280 (11th Cir. 2010), and although we 

might well have reached a different conclusion had the choice been ours, we 

cannot say that the district court exceeded the limits of its discretion in awarding 

 6 Although Gowen contends that meetings held on those days included six attorneys, the 

invoice submitted by Greenberg indicates that four attorneys were present at each meeting.

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fees for hours requested for the multiple-attorney meetings given the different role 

of each attorney.

Gowen next contends that the court should discount hours spent on 

unsuccessful work, specifically hours spent preparing video clips of depositions 

that were never used7 and a motion to strike that was never filed. Generally, hours 

spent on “discrete and unsuccessful claims” should be excluded from fee awards. 

Norman, 836 F.2d at 1302. The district court concluded, however, that § 9-11-68 

“plainly contemplates awards of attorney’s fees on unsuccessful legal work” 

because it provides for losing defendants to recover attorney’s fees if the final 

judgment is less than 75 percent of the offer of settlement. See Ga. Code Ann. § 9-

11-68(b)(1). A statute that provides for a losing defendant to recover attorney’s 

fees plainly cannot exclude recovery of fees for time spent on unsuccessful claims. 

The fact that a judgment is entered against a defendant necessarily means that the 

work the defendant did in an effort to avoid that judgment was unsuccessful in 

avoiding a judgment against the defendant. Therefore blocking recovery of fees

spent on unsuccessful claims would prevent a losing defendant from recovering 

any fees regardless of how far below the offer the actual judgment was. That result 

is plainly inconsistent with § 9-11-68(b)(1). We cannot say the district court’s 

 7 Gowen argued in the district court that costs associated with taking those depositions 

should also be excluded from Greenberg’s award. Because Gowen failed to raise that issue on 

appeal, it has been abandoned. N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 

1217 n.4 (11th Cir. 2008).

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reasoning was an abuse of discretion. The district court also found as a fact that 

the work on the deposition video clips and the motion to strike was necessary, and 

that finding is not clearly erroneous.

Gowen also contends that Greenberg is not entitled to recover fees for 

paralegal work. Fees for paralegal work are recoverable “to the extent that the 

paralegal performs work traditionally done by an attorney.” Jean v. Nelson, 863 

F.2d 759, 778 (11th Cir. 1988) (emphasis omitted). Greenberg presented an 

affidavit stating that all of the work done by its paralegals would have been 

performed by attorneys if the paralegals had not done it, and Gowen has failed to 

point out any work done by paralegals that is not work traditionally done by 

attorneys. The district court did not abuse its discretion by including paralegal 

hours in the fee calculation.

Finally, Gowen’s argument that Greenberg’s hours are unreasonable simply

because Gowen’s counsel spent far fewer hours preparing for the same case is 

without merit. See Johnson v. Univ. Coll. of Univ. of Ala. in Birmingham, 706 

F.2d 1205, 1208 (11th Cir. 1983) (“The amount of hours that is needed by one side 

to prepare adequately may differ substantially from that for opposing counsel, 

since the nature of the work may vary dramatically.”).

The district court’s grant of Greenberg’s request for fees and expenses is 

AFFIRMED.

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